2013 Ohio 2728
Ohio Ct. App.2013Background
- Randall D. Rush was indicted on multiple sex-related charges (gross sexual imposition, rape, sexual battery, child endangering); later plea negotiations resulted in counts 2–9 being nolled and Count 1 amended to attempted child endangering (felony 4th degree).
- Rush entered a no-contest plea to the amended attempted child endangering charge; the plea form stated the state would make no sentencing recommendation and would nolle other counts.
- The trial court ordered a presentence investigation (PSI), but the PSI is not in the record on appeal.
- At sentencing the court reviewed the PSI and victim impact materials, noted the allegations involved sexual misconduct (victim was appellant’s stepdaughter), and imposed an 18-month prison term (maximum for a 4th-degree felony).
- Rush appealed, arguing the maximum prison sentence violated R.C. 2929.13 and that community control was required for his nonviolent fourth-degree felony.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred by imposing an 18-month prison term for a nonviolent 4th-degree felony | State argued no sentencing recommendation and reliance on PSI/victim impact justified prison | Rush argued R.C. 2929.13(B) required a community-control sanction because: first felony, most serious offense was 4th-degree nonviolent, and no statutory exception applied | Court reversed: sentence was clearly and convincingly contrary to law; R.C. 2929.13(B) required community control in this record |
Key Cases Cited
- State v. Kalish, 896 N.E.2d 124 (Ohio 2008) (sets two-step review for felony sentences: statutory compliance then abuse-of-discretion)
- State v. Cooey, 544 N.E.2d 895 (Ohio 1989) (trial courts may consider dismissed or reduced charges when imposing sentence)